Requesting, obtaining, and using funds for criminal defense experts is necessary in an increasing number of criminal cases when viewed in the context of recognized national standards of legal practice. National standards now require that defense attorneys access experts and resources when "necessary and appropriate" for preparing the defense, or for understanding or rebutting the prosecution's case.

In a case involving the issue of whether an indi-gent was entitled to funds to access a defense psychiatrist, this country's highest court an-nounced that sufficient supporting services were critical to a competent defense: "We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense." Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake involved the assistance of an independent defense psychiatrist to investigate and present the defense of insanity and to rebut the prosecution's evidence to aggravate the sentence to death.

Competence is not only a characteristic of the individual professional; it is a function of the professional, the situation, and the resources at hand. A gifted surgeon without benefit of a sterile surgery, proper equipment, or anesthesiologists and nurses cannot perform competently, no matter the level of his intrinsic ability. Criminal defense attorneys, regardless of their skill, are unable to perform competently without the expertise and necessary support of investigators, testifying experts, or consulting experts.

This article identifies national standards of practice for professional service, national legal standards for requesting funds for defense ex-perts, and the actual evolving benchmark methods of successful requests for defense expert funds.

Competence and Quality. The best legal representation is client-centered. "If professionals are to preserve client trust, their skillful practice must consider who the client is and must derive its principles from features of the client's good which professionals study and dedicate their lives to promoting."¹ Clients demand competence and quality; nothing less suffices. When receiving medical care we want the very best treatment available nationally or in the world. We have but one body and one life. We do not want our ailing heart, broken hip, or raging cancer treated with anything less than the latest and best weapons in the therapeutic armamentarium.

Therefore, it is no surprise that the first and foremost national standard of most professions is to provide service to the client which is competent. For example, Section 1 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (Sept. 1993) states, "A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity."²

Principle A of the Ethical Principles of Psychologists and Code of Conduct (1992) states, in part, "Psychologists strive to maintain high standards of a competence in their work."³

Principle I of the clinical social work Code of Ethics (May 1988) states:

Clinical social workers maintain high standards of the profession in all of their professional roles. Clinical social workers value professional competence, objectivity and integrity. They consistently examine, use, and attempt to expand the knowledge upon which practice is based, working to ensure that their services are used appropriately and accepting responsibility for the consequences of their work.

Global Context. The market today is no longer statewide or even regional, it is national and worldwide. A professional or a company which expects to successfully compete and prosper over the long haul has no choice but to meet and beat international competitors, and satisfy the customer, the patient, the client. As Gary Hamel and C.K. Prahalad have observed, "Global competition is not just product versus product, company versus company, or trading bloc versus trading bloc. It is mindset versus mindset." Strategy as Stretch and Leverage, Harvard Business Review, March-April (1993) at 77. To successfully represent clients in these times, we must take on the mindset of a cosmopolitan, excelling at concepts, competence and connections.⁴

Benchmarking. Benchmarking is an important method of providing the very best service. "In simple terms, benchmarking is learning from the pros. Benchmarkers first evaluate their own operations to pinpoint their weaknesses, then identify, study, and imitate organizations that excel in those areas. By adopting world class standards and practices, many organizations have catapulted ahead of their competitors almost overnight, and some have even surpassed the performance levels or 'benchmarks' set by their mentors." Sandra Millers Younger, Understanding Benchmarking: The Search for Best Practice (July 1992), American Society for Training and Development InfoLine.

Benchmarks for quality performance of lawyers are national and global. It is no longer sufficient to be only "as good" as those in your town, county or region, especially when dealing with someone's liberty or life.

The American Bar Association (ABA) and the National Legal Aid and Defender Association (NLADA) have gathered key national criminal justice professionals to study and develop national professional benchmarks, guidelines or standards for the practice of criminal defense. A look at their work reveals important perspectives on what is required of criminal defense attorneys especially in terms of employing experts.

The American Bar Association Standards for Criminal Justice Providing Defense Services (3d ed. 1992) were recently updated by a distin-guished committee.⁵ This latest expression of national criminal justice standards by the ABA recognizes the need for constant evolution of the level of practice. "The third edition changes recognize the significant growth in defense ser-vices over the past decade, as well as the pro-found changes in interpretation of the consti-tutional right to counsel and the scope of the criminal sanction, as viewed by the United States Supreme Court. These new changes should serve as a useful tool to both the policy-maker and the litigator who seeks legal and ethical guidance on the provision of defense services in the state and federal courts." Id. at xii.

Quality. The ABA's Providing Defense Services Standard 5-1.1 sets the overriding standard of criminal defense representation: "The objective in providing counsel should be to assure that quality legal representation is afforded all persons eligible for counsel pursuant to this chapter."

Experts & Resources. The ABA Providing Defense Services Standard 5-1.4 requires that defenders have the necessary resources for quality representation: "The legal representation plan should provide for investigatory, expert, and other services necessary to quality legal representation. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense preparation in every phase of the process...."

The Commentary states the obvious rationale for Standard 5-1.4: "A sine qua non of quality legal representation is the support personnel and equipment necessary for professional service.... Quality legal representation cannot be rendered either by defenders or by assigned counsel unless the lawyers have available other supporting services in addition to secretaries and investigators. Among these are access to necessary expert witnesses, as well as personnel skilled in social work and related disciplines to provide assistance at pretrial release hearings and at sentencing. The quality of representation at trial, for example, may be excellent and yet unhelpful to the defendant if the defense requires the assistance of a psychiatrist or handwriting expert and no such services are available."

The ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), Guideline 8.1 addresses the necessity for supporting services: "The legal representation plan for each jurisdiction should provide counsel appointed pursuant to these Guidelines with investigative, expert, and other services necessary to prepare and present an adequate defense. These should include not only those services and facilities needed for an effective defense at trial, but also those that are required for effective defense representation at every stage of the proceedings, including the sentencing phase."

The Commentary to 8.1 explains: "Counsel as-signed to represent defendants in capital cases must engage in ongoing research in order to keep abreast of the rapidly changing legal developments in the complex body of law surrounding death penalty issues. In order to make use of sophisticated jury selection techniques... for example, the defense requires access to social scientists and other experts who can assist in voir dire questioning and the profiling of prospective jurors. Since pretrial investigation and preparation are fundamental to attorney competence at trial.... [A]ssigned counsel requires the services of trial assistants such as investigators to gather evidence and witnesses favorable to the client and to enable counsel to intelligently assess conflicting options. An adequate defense also requires the services of expert witnesses to testify on behalf of the client and to prepare defense counsel to effectively cross-examine the state's experts. Additionally, counsel in a capital case is obligated to conduct a thorough investigation of the defendant's life history and back-ground and, if it is in the best interest of the client, to present mitigating evidence uncovered during the course of that investigation at the penalty phase of the trial.... counsel, whether practicing privately or within a defender office, cannot adequately perform these and other crucial penalty phase tasks without the assistance of investigators and other assistants.

"It is critical, therefore, for each jurisdiction to authorize sufficient funds to enable counsel in capital cases to conduct a thorough investigation for trial, sentencing, appeal and post-conviction and to procure the necessary expert witnesses and documentary evidence. Assigned attorneys involved in capital cases are typically provided with few, if any, resources to fund this aspect of case preparation. According to one source, the funds which states and counties provide for defense counsel are far below the amounts that would be needed even if capital trials had only one phase. Furthermore, funds available to ap-pointed defense counsel are substantially below those available to the prosecution. This inequity is unconscionable."

The National Legal Aid and Defender Association has also developed national standards for criminal defense representation of indigents. NLADA is a private, nonprofit, national membership organization dedicated to assuring the avail-ability of high-quality legal services for poor people, and has special national experience and perspective for the special needs of indigent defendants. NLADA's Performance Guidelines for Criminal Defense Representation (1995) Guideline 4.1(7) addresses the need for expert assistance: "Counsel should secure the assistance of experts where it is necessary or appropriate to: (A) the preparation of the defense; (B) adequate understanding of the prosecution's case; (C) rebut the prosecution's case." Successfully obtaining funds for experts has been done through an evolving national methodology which continuously reaches new benchmarks.

There must be a constant effort to practice according to evolving national standards. As Robert C. Camp of Xerox explains, "You've got to be continuously looking for a better way to do things... benchmarking is a change in mentality from productivity as a one time event to a continuum."

Criminal defense practitioners must continually improve representation of clients in preparation of the defense, in understanding of the prosecution's case, and in rebutting the prosecution's evidence. The skills used in defending the constitutional rights of the accused or convicted are not discrete, singular efforts, but require constant attention and commitment. Obtaining funds for defense experts and defense resources is frequently necessary to achieve the objective of the vigorous, effective, quality defense of criminal defendants.

Edward C. Monahan and James J. Clark, Ph.D.

¹Daryl Koehn, The Ground of Professional Ethics (1994) at 32.

²It is of significant interest to criminal defense attorneys that paragraph 4 of the Commentary to Section 1 states "A psychiatrist should not be a participant in a legally authorized execution."

³The entire Principle reads: "Principle A: Competence. Psychologists strive to maintain high standards of competence in their work. They recognize the boundaries of their particular competencies and the limitations of their ex-pertise. They provide only those services and use only those techniques for which they are qualified by education, training, or experience. Psychologists are cognizant of the fact that the competencies required in serving, teaching, and/or studying groups of people vary with the distinctive characteristics of those groups. In those areas in which recognized professional standards do not yet exist, psychologists exercise careful judgment and take appropriate precautions to protect the welfare of those with whom they work. They maintain knowledge of relevant scientific and professional information related to the services they render, and they recognize the need for ongoing education. Psychologists make appropriate use of scientific, professional, technical, and administrative resources."

⁴In Worldclass: Thriving Locally in the Global Economy (1995) Rosabeth Moss Kanter describes this sophisticated mindset: "Cosmopolitans are rich in three intangible assets, three C's that translate into preeminence and power in a global economy: Concepts - the best and latest knowledge and ideas; competence - the ability to operate at the highest standards of any place anywhere; and connections - the best relationships, which provide access to the resources of other people and organizations around the world. Indeed, it is because cosmopolitans bring the best and latest concepts, the highest levels of com-petence, and excellent connections that they gain influence over locals." Id. at 23.

⁵Shirley Abrahamson, Justice of the Wisconsin Supreme Court; Norman Lefstein, Dean of the Indiana University Law School; Charles English, private practitioner; Chaleff, English & Cutalono, Santa Monica, California; Ronald Clark, King County Chief Deputy prosecutor, Seattle, Washington; Professor Sam Dash, Georgetown Law Center; and Bennett Brummer, Miami Florida Public Defender.

Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)

Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (Sept. 1993)

Ethical Principles of Psychologists and Code of Conduct (1992)

Code of Ethics (May 1988)

Strategy as Stretch and Leverage, Harvard Business Review, March-April (1993)

Understanding Benchmarking: The Search for Best Practice (July 1992)

American Society for Training and Development InfoLine

American Bar Association Standards for Crim-inal Justice Providing Defense Services (3d ed. 1992)

ABA's Providing Defense Services Standard 5-1.1

ABA Providing Defense Services Standard 5-1.4

ABA Guidelines for the Appointment and Per-formance of Counsel in Death Penalty Cases (1989)

NLADA's Performance Guidelines for Criminal Defense Representation (1995)

Daryl Koehn, The Ground of Professional Ethics (1994)

Kanter, Worldclass: Thriving Locally in the Global Economy (1995)